VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_23-vv-01531
Package ID: USCOURTS-cofc-1_23-vv-01531
Petitioner: L.A.
Filed: 2024-12-23
Decided: 2026-03-10
Vaccine: influenza
Vaccination date: 2022-10-25
Condition: appendicitis resulting in an appendectomy and reactive synovitis
Outcome: compensated
Award amount USD: 65339

AI-assisted case summary:
Bonnie Albano, on behalf of her minor child L.A., filed a petition for compensation under the National Vaccine Injury Compensation Program on December 23, 2024. Petitioner alleges that L.A. suffered appendicitis resulting in an appendectomy and reactive synovitis after receiving an influenza vaccine on October 25, 2022. The case is still pending resolution. Petitioner has filed a motion for interim attorneys' fees and costs, requesting $65,339.48. Respondent opposed the motion, asserting the claim lacked a reasonable basis, but did not object to the rates or hours. The court found that Petitioner acted in good faith and demonstrated a reasonable basis for the claim, citing medical records and expert opinions. The court granted the motion for interim attorneys' fees and costs, awarding the full requested amount of $65,339.48. The decision was issued by Chief Special Master Corcoran on March 10, 2026.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_23-vv-01531-0
Date issued/filed: 2026-04-09
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 03/10/2026) regarding 51 DECISION of Special Master - Interim Attorney's Fees. Signed by Chief Special Master Brian H. Corcoran. (jjr) Service on parties made.
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Case 1:23-vv-01531-UNJ Document 54 Filed 04/09/26 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 23-1531V
* * * * * * * * * * * * * Chief Special Master Corcoran
BONNIE ALBANO, *
on behalf of her minor child, L.A., *
*
Petitioner, *
*
v. * March 10, 2026
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * *
Courtney C. Jorgenson, Siri & Glimstad, LLP, Phoenix, AZ, for Petitioner.
Alexa Roggenkamp, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION GRANTING INTERIM AWARD OF ATTORNEYS’ FEES AND COSTS1
On December 23, 2024, Bonnie Albano, on behalf of her minor child, L.A., filed a
petitioner for compensation under the National Vaccine Injury Compensation Program. Petition
(“Pet.”) (ECF No. 1); Amended Pet. (ECF No. 20); 42 U.S.C. § 300aa-10, et seq. (the “Vaccine
Act”).2 Petitioner alleges that L.A. suffered appendicitis resulting in an appendectomy and
reactive synovitis after receipt of an influenza (“flu”) vaccine on October 25, 2022. Amended Pet.
at Preamble, ¶ 3. Resolution of the matter remains pending.3
Petitioner has now filed a motion for interim attorneys’ fees and costs. Interim Fees Motion
(“Int. Fees Mot.”) (ECF No. 42). It is the first fees request in this case, and is occasioned by the
withdrawal of her prior counsel on December 27, 2024. Motion to Substitute Attorney, dated Dec.
1 Under Vaccine Rule 18(b), each party has fourteen (14) days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public
in its present form. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).
3 This matter was until recently before Special Master Gowen, who retired earlier this month. It has since been
transferred to my docket.

Case 1:23-vv-01531-UNJ Document 54 Filed 04/09/26 Page 2 of 7
27, 2024 (ECF No. 43). Petitioner requests a total of $65,339.48, reflecting $43,097.50 in fees,
plus $22,241.98 in costs. Int. Fees Mot. at 11.
On January 21, 2025, Respondent filed his opposition to the motion, asserting that
Petitioner’s claim lacked a reasonable basis. Respondent’s (“Resp’t”) Response at 10 (ECF No.
45). Respondent did not object to the hourly rates requested, the number of hours expended, or
the specific expenses identified.
Petitioner filed a reply on January 22, 2025, maintaining that “there is ample evidence
supporting a determination of reasonable basis.” Petitioner’s (“Pet’r”) Reply at 1 (ECF No. 46).
Petitioner further emphasized the appropriateness of the requested award, in light of Mr.
Downing’s withdrawal from the case following his presidential appointment within the U.S.
Department of Health and Human Services. Int. Fees Mot. at 2; Pet’r Reply at 1.
For the reasons discussed below, Petitioner’s motion for attorneys’ fees and costs is
GRANTED, and Petitioner is awarded $65,339.48.
I. Legal Standards for Awards of Interim Attorneys’ Fees and Costs
The Vaccine Act provides that reasonable attorneys’ fees and costs “shall be awarded” for
a petition that results in compensation. Section 15(e)(1)(A)-(B). Even when compensation is not
awarded, reasonable attorneys’ fees and costs “may” be awarded “if the special master or court
determines that the petition was brought in good faith and there was a reasonable basis for which
the claim was brought.” § 15(e)(1) (emphasis added). The Federal Circuit has reasoned that in
formulating this standard, Congress intended “to ensure that vaccine injury claimants have readily
available a competent bar to prosecute their claims.” Cloer v. Sec’y of Health & Human Servs.,
675 F.3d 1358, 1362 (Fed. Cir. 2012).
Petitioners act in good faith if they filed their claims with an honest belief that a vaccine
injury occurred. Turner v. Sec’y of Health & Human Servs., No. 99-544V, 2007 WL 4410030, at
*5 (Fed. Cl. Spec. Mstr. Nov. 30, 2007). To receive an award of fees and costs, petitioners must
also demonstrate their claims were brought with a reasonable basis supported by objective
evidence. Simmons v. Sec’y of Health & Human Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (citing
§ 15(e)(1)); see also, Chuisano v. Sec’y of Health & Human Servs., 116 Fed. Cl. 276, 286 (Fed.
Cl. 2014) (citing McKellar v. Sec’y of Health & Human Servs., 101 Fed Cl. 297, 303 (Fed. Cl.
2011)). To establish a reasonable basis for attorneys’ fees, petitioners need not prove a likelihood
of success. Woods v. Sec’y of Health & Human Servs., No. 10-377V, 2012 WL 401485, at *5-7
(Fed. Cl. Spec. Mstr. Aug. 23, 2012) (citing Turner, 2007 WL 4410030, at *6). Instead, the special
master considers the totality of the circumstances and evaluates the objective evidence, which may
2

Case 1:23-vv-01531-UNJ Document 54 Filed 04/09/26 Page 3 of 7
fall short of a preponderance, but must rise above a “mere scintilla” of evidence. Cottingham v.
Sec’y of Health & Human Servs., 971 F.3d 1337, 1344-46 (Fed. Cir. 2020).
Also, relevant herein are the standards governing interim awards—meaning fees awards
issued while a case is still pending. See generally Auch v. Sec’y of Health & Human Servs., No.
12-673V, 2016 WL 3944701, at *6–9 (Fed. Cl. Spec. Mstr. May 20, 2016); Al-Uffi v. Sec’y of
Health & Human Servs., No. 13-956V, 2015 WL 6181669, at *5–9 (Fed. Cl. Spec. Mstr. Sept. 30,
2015). It is well-established that a decision on entitlement is not required before fees or costs may
be awarded. Fester v. Sec’y of Health & Human Servs., No. 10-243V, 2013 WL 5367670, at *8
(Fed. Cl. Spec. Mstr. Aug. 27, 2013); see also Cloer, 675 F.3d at 1362; Avera v. Sec’y of Health
& Human Servs., 515 F.3d 1343, 1352 (Fed. Cir. 2008). Interim award requests are subject to the
same reasonable basis inquiry applied to unsuccessful but completed matters, since in the context
of an interim request the claim literally is not yet been found to be “successful.”
There is no presumption of entitlement to interim awards, but special masters may, in their
discretion, permit such awards and often do so. Perreira v. Sec’y of Health & Human Servs., 27
Fed. Cl. 29, 34 (1992), aff'd, 33 F.3d 1375 (Fed. Cir. 1994). Requests for interim costs are subject
to the same standards governing fees. Perreira, 27 Fed. Cl. at 34; Presault v. United States, 52
Fed. Cl. 667, 670 (2002); Fester, 2013 WL 5367670 at *16. However, there must be some
showing that a Petitioner’s circumstances render an interim award just. Criteria that I have found
to be important in determining whether an interim award should be permitted include: 1) whether
the amount of fees requested exceeds $30,000; 2) where expert costs are requested, if the aggregate
amount is more than $15,000; and/or 3) whether the case has been pending for more than 18
months. See Knorr v. Sec’y of Health & Human Servs., No. 15-1169V, 2017 WL 2461375 (Fed.
Cl. Spec. Mstr. Apr. 17, 2017).
In this case, Petitioner has satisfied the good faith requirement. The records reveal that
L.A received the flu vaccine and was later diagnosed with acute appendicitis and toxic/transient
synovitis. See e.g., Pet’r Ex. 3 at 1 (ECF No. 6); Pet’r Ex. 4 at 33-34. Petitioner has also filed an
affidavit stating that her son experienced an adverse reaction to the flu vaccine and has suffered
injuries lasting beyond six months. Pet’r Ex. 1 at ¶ 17. Further, Petitioner was granted leave to
amend her petition and expand her allegation. These circumstances support a finding of good faith.
Petitioner has also demonstrated a reasonable basis for her claim. The medical records
reflect that L.A. experienced appendicitis and toxic/transient synovitis within weeks of
vaccination. See, e.g., Pet’r Ex. 4 at 33-34. Although L.A.’s treating providers generally did not
entertain a vaccine-related etiology, Petitioner has presented expert opinions and medical literature
supporting her allegations. Compare Pet’r Ex. 4 at 33-34 (associating a contemporaneous influenza
infection with toxic synovitis) with Pet’r Ex. 17 at 42 (noting that L.A. “got a flu shot and two
weeks later then he had appendicitis then two weeks later he had transient synovitis”); see also
3

Case 1:23-vv-01531-UNJ Document 54 Filed 04/09/26 Page 4 of 7
Pet’r Exs. 20, 55. While the parties dispute whether L.A.’s joint condition persisted beyond six
months, the record reflects that L.A. underwent an emergent appendectomy, which has the
potential to satisfy the Vaccine Act’s severity requirement. See e.g., Pet’r Ex. 6 at 136-37, 139-40.
The claim of course is still pending, and it remains to be determined if causation can be
preponderantly established. But even if Petitioner’s declarations, expert reports, and items of
medical literature ultimately fall short of establishing entitlement by a preponderance of the
evidence, they exceed the mere scintilla threshold required to establish reasonable basis. I identify
no other basis for denial of fees at this juncture, and note as well that withdrawal of counsel is
often deemed sufficient grounds for an interim award. Accordingly, Petitioner is eligible for an
interim award of fees and costs.
II. Calculation of Attorneys’ Fees
Only “reasonable” fees or costs may be awarded in the Program. Determining the
appropriate amount of the fees award is a two-part process. The first part involves application of
the lodestar method—“multiplying the number of hours reasonably expended on the litigation
times a reasonable hourly rate.” Avera, 515 F.3d at 1347–48 (quoting Blum v. Stenson, 465 U.S.
886, 888 (1984)). The second part involves adjusting the lodestar calculation up or down to take
relevant factors into consideration. Id. at 1348. This standard for calculating a fee award is
considered applicable in most cases where a fee award is authorized by federal statute. Hensley v.
Eckerhart, 461 U.S. 424, 429–37 (1983).
An attorney’s reasonable hourly rate is determined by the “forum rule,” which bases the
proper hourly rate to be awarded on the forum in which the relevant court sits (Washington, D.C.,
for Vaccine Act cases), except where an attorney's work was not performed in the forum and there
is a substantial difference in rates (the so-called “Davis exception”). Avera, 515 F.3d at
1348 (citing Davis Cty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. U.S. Envtl.
Prot. Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). A 2015 decision established the hourly rate
ranges for attorneys with different levels of experience who are entitled to the forum rate in the
Vaccine Program. See McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL
5634323, at *19 (Fed. Cl. Spec. Mstr. Sept. 1, 2015). The court has since updated the McCulloch
rates, and the Attorneys Forum Hourly Rate Fee Schedules for 2023-2024 can be accessed
online.4
Petitioners bear the burden of establishing the hours expended, the rates charged, and the
expenses incurred. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct. 482, 484 (1991), aff’d
4 The 2023-2024 Fee Schedules can be accessed at https://www.cofc.uscourts.gov/osm-attorneys-forum-hourly-rate-
fee-schedules (last accessed March 4, 2026).
4

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Case 1:23-vv-01531-UNJ Document 54 Filed 04/09/26 Page 6 of 7
The attorneys at Mr. Downing’s firm have been recognized to practice in forum, thus
entitling them to commensurate rates established in McCulloch. See Rossiter v. Sec’y of Health &
Human Servs., No. 20-1888V, 2023 WL 3778899, at *2 (Fed. Cl. Spec. Mstr. June 2, 2023). These
rates are consistent with what has been awarded to counsel, associates, and paralegals in the past
and are in line with the approved rates contained in the Fee Schedule. See e.g., Lucas v. Sec’y of
Health & Human Servs., No. 19-1525V, 2025 WL 1158901, at *5 (Fed. Cl. Mar. 25, 2025);
Cracraft v. Sec'y of Health & Human Servs., No. 20-0562V, 2024 WL 2992939, at *3 (Fed. Cl.
Spec. Mstr. May 9, 2024); Hart v. Sec’y of Health & Human Servs., No. 23-1981V, 2026 WL
458779, at *4 (Fed. Cl. Jan. 14, 2026); Bhatia on behalf of S.B. v. Sec’y of Health & Human Servs.,
No. 24-946V, 2026 WL 459253, at *2 (Fed. Cl. Jan. 15, 2026).
Respondent does not object to the reasonableness of the requested hourly rates or the
number of hours expended. Upon review, I find no basis to reduce either component of the
requested attorneys’ fees and conclude that the requested attorneys’ fees are reasonable and
appropriate. I thus find no cause to reduce them in this instance. I deem the time devoted to the
matter to be reasonable, and I will therefore award all fees requested without adjustment.
III. Calculation of Costs
Like attorneys’ fees, costs incurred by counsel or by an individual petitioner must be
reasonable to be reimbursed in the Program. Perreira, 27 Fed. Cl. Ct. at 34.
Reasonable costs include the costs of obtaining medical records and expert time incurred while
working on a case. Fester, 2013 WL 5367670 at *16 (noting that only costs incurred, rather than
projected expenses, may be reasonable). When claimants fail to substantiate a cost item, such as
by not providing appropriate documentation to explain the basis for a particular cost, special
masters have refrained from paying the requested costs at issued. See, e.g., Gardner-Cook v. Sec’y
of Health & Human Servs., No. 99-480V, 2005 WL 6122520, at *4 (Fed. Cl. Spec. Mstr. June 30,
2005).
Here, Petitioner seeks $22,241.98 in outstanding costs, including the filing fee, medical
records retrieval costs, postage costs, and expert expenditures. Int. Fees Mot. at 11, 37-39. All
are commonly incurred in the Vaccine Program, and are reasonable herein. Accordingly,
Petitioner shall be awarded the full amount requested for costs.
CONCLUSION
Based on the foregoing, and in the exercise of the discretion afforded to me in determining
the propriety of an interim fees award, I GRANT Petitioner’s Motion for an Interim Award
of Attorneys’ Fees and Costs. I award a total of $65,339.48 (reflecting $43,097.50 in fees, and
6

Case 1:23-vv-01531-UNJ Document 54 Filed 04/09/26 Page 7 of 7
$22,241.98 in costs) to be paid through an ACH deposit to Petitioner’s former counsel, Mr.
Andrew D. Downing’s IOLTA account, for prompt disbursement.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision.5
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
7